Gomes v Higher Level Care Ltd

This appeal raises a short but important question of law as to whether the Employment Tribunal has the power to make an award of compensation for injury to feelings where there has been a breach of the Working Time Regulations 1998 (SI 1998 No. 1833) (“the Regulations”). Both the Employment Tribunal sitting at London South (“ET”) and the Employment Appeal Tribunal (“EAT”) held that there is no such power. The Appellant submits that that was wrong in law.

It is further submitted on her behalf that the contrary construction of the Regulations is required in order to conform to European Union (“EU”) law. In so far as the issue is not acte clair it is submitted on behalf of the Appellant that this Court should refer the question of law to the Court of Justice of the European Union (“CJEU”) for a preliminary ruling.

Permission to bring this appeal was granted on the papers by Lewison LJ in an order sealed on 20 December 2016.

The Respondent provides accommodation and support for vulnerable young people. The Appellant was employed by the Respondent from 1 February 2013 until 28 May 2014.

On 3 June 2014 the Appellant filed her claim in the ET. She claimed compensation for, among other things, failure to allow her rest breaks, which she alleged damaged her health and well-being.

In the judgment sent to the parties on 24 June 2015 the ET (EJ Zuke) upheld some of those claims, including the one brought under the Regulations. The ET found that the Respondent had failed to provide the Appellant with the 20 minute rest breaks required by the Regulations.

On 22 May 2015 the ET held a remedies hearing. The parties were agreed that there should be compensation for pecuniary loss of £1, 220 under Regulation 30 of the Regulations. However, there was a dispute between the parties about whether the Appellant was also entitled to recover compensation for injury to feelings. In a judgment sent to the parties on 10 August 2015 EJ Zuke rejected the contention made on behalf of the Appellant that there should be compensation for injury to feelings. He held, at paras. 37-50 of his judgment, that the ET has no power to make such an award in cases of this kind.

The Appellant’s appeal to the EAT was dismissed by Slade J in a judgment given on 18 May 2016.

The Working Time Regulations 1998 contain the following material provisions.

Regulation 12(1) provides that, where an adult worker’s daily working time is more than 6 hours, he is entitled to a rest break. Para. (3) provides that, subject to the provisions of any applicable collective agreement or workforce agreement, the rest break provided for in para. (1) is an uninterrupted period of not less than 20 minutes.

Regulation 30, which is headed “Remedies”, provides, in para. (1), that a worker may present a complaint to an Employment Tribunal that his employer has refused to permit him to exercise any right he has under (for present purposes) Regulation 12(1). The Regulation continues:

“(3)

Where an employment tribunal finds a complaint under paragraph (1)(a) well-founded, the tribunal –

(a)

shall make a declaration to that effect, and

(b)

may make an award of compensation to be paid by the employer to the worker.

(4)

The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to –

(a)

the employer’s default in refusing to permit the worker to exercise his right, and

(b)

any loss sustained by the worker which is attributable to the matters complained of.

…”

The Regulations give effect in domestic law to Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (“the Directive”).

Of particular relevance is Article 4 of the Directive, which provides that:

“Member states shall take the measures necessary to ensure that, where the working day is longer than 6 hours every worker is entitled to a rest break, the details of which, including duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.”

As I have mentioned the remedies judgment of EJ Zuke was sent to the parties on 10 August 2015. The present issue was considered at paras. 31-50 of the judgment. EJ Zuke accepted the submission made on behalf of the Appellant that the issue of law which presently arises had not been the subject of previous binding authority in the EAT and so it was open to the ET to decide whether Regulation 30 permits an award of compensation for injury to feelings: see para. 34 of his judgment.

It was submitted on behalf of the Appellant that the only possible compensation an employee could be awarded under Regulation 30(4)(a), in the absence of any actual pecuniary loss, would be compensation for injury to feelings. It was submitted that any other interpretation would make Regulation 30(4)(a) redundant: see para. 35 of the judgment. EJ Zuke rejected that submission at para. 36:

“… In my view the focus on s.30(4)(a) is ‘the employer’s default in refusing to permit the worker to exercise his right’. In other words, in assessing compensation the Tribunal is required to consider the reasons why the employer failed to comply with the relevant regulation, in this case regulation 12. That would include, for example, whether the employer had knowingly breached the relevant regulation; whether it had brazenly refused a request for a rest break or holiday or holiday pay, or whether its default was inadvertent, due to a mistake, or to a genuine but mistaken belief about the employee’s entitlement.” (Emphasis in original)

It was next submitted on behalf of the Appellant that the principle of conforming construction under EU law should lead to the interpretation of the Regulations that there was jurisdiction to award compensation for injury to feelings. EJ Zuke rejected that submission at para. 39 of the judgment. He said:

“In my view there is nothing in the Directive that supports the proposition that its proper implementation requires member states to provide that a worker is entitled to compensation for any injury to their feelings that they may experience as a result of a failure to comply with the terms of the Directive.”

It was further submitted on behalf of the Appellant that the absence from Regulation 30 of any express provision excluding compensation for injury to feelings implies that such an award is permissible under Regulation 30: see para. 42 of the judgment. That submission was also rejected by EJ Zuke: see paras. 43-49. In that passage EJ Zuke drew a distinction between anti-discrimination legislation and the current Regulations. He concluded, at para. 49:

“The Working Time Regulations are designed to protect the health and safety of workers. They are not an anti-discrimination provision. They do not contain any reference to less favourable treatment in comparison with some other status or characteristic.”

EJ Zuke concluded on this issue as follows, at para. 50:

“I conclude that the absence of an express prohibition of an award for injury to feelings does not imply that such an award is permissible. In my view, if Parliament had intended that such an award were permissible, it would have made express provision to that effect, as it did in the Equality Act 2010 and its predecessors.”

As I have mentioned the judgment of the EAT was given by Slade J on 18 May 2016.

Slade J’s discussion of the domestic law issue is at paras. 44-60 of her judgment. At para. 47 she observed that it is well established that awards for injury to feelings are compensatory, not punitive: see Armitage and Others v Johnson [1997] IRLR 162 at para. 27 (Smith J, as she then was). Slade J went on to state that:

“… Compensation for injury to feelings is based on the effect on the claimant not on the default of the perpetrator.”

Slade J considered a number of earlier decisions by the EAT (which were also cited before this Court and to which I will return later) and concluded that they were all concerned either with detriment on trade union grounds or with whistleblowing. She concluded that those decisions of the EAT do not support a construction of Regulation 30(4)(a) which would enable an Employment Tribunal to make an award for injury to feelings in the present context.

At para. 52 of her judgment Slade J said that the express exclusion of compensation for injury to feelings from awards under certain other legislation, for example the Part-Time Workers Regulations and the Agency Workers Regulations, does not indicate that compensation for injury to feelings is generally available in statutory employment claims such as under the present Regulations. She said that claims under those sets of Regulations are all types of discrimination. As had been explained by the EAT in earlier decisions, compensation for injury to feelings may be available in certain types of discrimination cases. At para. 54 Slade J said that the Appellant had been unable to point to any authority in which such compensation had been awarded in a claim not involving discrimination. She concluded, at para. 59, that the ET in the present case did not err in holding that compensation for injury to feelings is confined to discrimination cases.

Slade J then considered the EU law argument at paras. 61-71 of her judgment. She concluded that the means of implementing the Directive are left to Member States. Those means must be such as to provide effective protection. However, she concluded that neither the Directive nor established principles of EU law require domestic courts to construe Regulation 30(4) so as to provide compensation for injury to feelings: see para. 70 of her judgment.

It is important to note that, at para. 69, Slade J regarded claims for denial of the right to rest breaks as being “analogous to claims for breach of contract. The contract of employment arguably may be regarded as subject to a statutory variation giving such an entitlement.” She noted that there is no entitlement in domestic law to damages or compensation for injury to feelings either for a breach of contract of employment or for unfair dismissal (I will return to the relevant authorities later). Similarly, she concluded, there is no power to award compensation for injury to feelings in the present context.

On behalf of the Appellant Mr Barnett advances two grounds of appeal. The first ground is that the ET erred as a matter of domestic law in concluding that it had no power to make an award of compensation for injury to feelings in the present context.

Mr Barnett sub-divides his first ground of appeal into the following subsidiary parts:

The second ground of appeal is that, if domestic law does not otherwise have that effect, it must be interpreted in a way which would permit an Employment Tribunal to make such an award because of obligations in EU law under the Directive. Mr Barnett further submits that, if the answer to the second issue is not acte clair, this Court should make a reference to the CJEU to give a preliminary ruling on that question of EU law.

Under the second ground Mr Barnett submits that the ET erred in EU law in concluding that there was nothing in the Working Time Directive which supports the proposition that its proper implementation requires Member States to provide that a worker is entitled to compensation for any injury to feelings as a result of failure to comply with the terms of the Directive. In that context Mr Barnett relies upon the well-known principles of EU law relating first to equivalence with domestic law remedies and, secondly, to effectiveness.

On behalf of the Respondent Mr Pascall submits that the Tribunals below did not err in law and that their decisions should be upheld, essentially for the reasons which they gave. He submits that there is a distinction between the line of authority in the EAT on which the Appellant relies, for example to do with detriment on trade union grounds, in which it has been held that compensation for injury to feelings is available, because they are analogous to discrimination claims; and the present context, which is not analogous to a discrimination claim but is, as Slade J considered in the EAT, akin to a claim for breach of contract.

Mr Pascall does not take issue with the relevant principles of EU law but submits that there is nothing in the Directive which requires a different interpretation to be given to the domestic legislation which implements it. He also submits that the issue of EU law is acte clair and should not be referred to the CJEU for a preliminary ruling.

It is well established that, at common law, there is in general no entitlement to damages for injury to feelings for breach of contract: see Addis v Gramophone Co Ltd [1909] AC 488, at 491 (Lord Loreburn LC). There can be exceptions, for example where the purpose of the contract is to provide for comfort or pleasure, as in “spoiled holiday” cases: see Hayes v James & Charles Dodd (a firm) [1990] 2 All ER 815, at pp.823-824 (Sir George Waller).

In Johnson v Unisys Ltd [2001] UKHL 13; [2003] 1 AC 518 it was held by the House of Lords that damages for injury to feelings are not available at common law in a claim for wrongful dismissal: see para. 44, where Lord Hoffmann cited Addis with approval.

In Dunnachie v Kingston Upon Hull City Council [2004] UKHL 36; [2005] 1 AC 226 it was held by the House of Lords that such damages are not available in a claim for unfair dismissal under section 123(1) of the Employment Rights Act 1996 (“the 1996 Act”). In particular it is important to note that that provision is similar in wording to Regulation 30(4)(b) of the Working Time Regulations and that both provisions refer to “loss”. It was held in Dunnachie that “loss” in section 123(1) of the 1996 Act does not include non-pecuniary loss. The leading opinion was given by Lord Steyn, with which the other members of the House agreed. The House of Lords approved what had been said by the National Industrial Relations Court in Norton Tool Co Ltd v Tewson [1972] ICR 501; [1973] 1 WLR 45 and applied ever since until the obiter dicta of Lord Hoffmann in Johnson, which cast doubt on Norton Tool. Accordingly, a claimant who has been unfairly dismissed cannot recover compensation for loss arising from the manner of his dismissal, including any humiliation, injury to feelings and distress.

As is well known, in the context of the discrimination legislation, there is express provision made by statute for the possible award of compensation for injury to feelings: see, by way of example, sections 65(1)(b) and 66(4) of the Sex Discrimination Act 1975; and sections 56(1)(b) and 57(4) of the Race Relations Act 1976.

In a discrimination case the power to award remedies which is conferred on an Employment Tribunal is now to be found in section 124 of the Equality Act 2010. The powers of the tribunal include the power to order a respondent to pay compensation to the complainant: subsection (2)(b). Subsection (6) states that:

“The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the County Court … under section 119.”

Section 119(2) provides that the County Court has power to grant any remedy which could be granted by the High Court (a) in proceedings in tort; and (b) on a claim for judicial review. Subsection (4) provides that:

“An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).”

It will be noted that the current provision does not begin with words such as:

“For the avoidance of doubt …”

The previous legislation, including the Sex Discrimination Act 1975 and the Race Relations Act 1976, did include such a provision. The inclusion of such wording was considered by the EAT to be significant, as will become apparent.

The employment tribunal is a creature of statute. Accordingly, its jurisdiction is a statutory one. The issue of law which arises in the present case, namely whether the employment tribunal has jurisdiction to award compensation for injury to feelings, is at its root therefore one of statutory interpretation. In particular it turns on the correct interpretation of Regulation 30(4).

That issue of law has not been the subject of any previous decision of this Court. However, the issue has been considered briefly by the EAT. In Miles v Linkage Community Trust Ltd [2008] IRLR 602, in a judgment given by the EAT on 10 March 2008, HHJ McMullen QC, sitting with lay members, said that, in a case brought under the same regulations which are the subject of the present case, it was common ground that there is no scope for compensation for injury to feelings: see para. 11 of his judgment. However, that point was not argued, as is plain from the judgment of the EAT.

Although there is no authority directly on point, Mr Barnett relies upon four decisions of the EAT from other statutory contexts, three of which were considered (and distinguished) by Slade J in the present case; the fourth was decided by the EAT after the decision of Slade J in this case.

The first decision is Brassington v Cauldon Wholesale Ltd [1978] ICR 405, a decision by Bristow J, sitting with lay members. That case arose under section 53 of the Employment Protection Act 1975 (“the 1975 Act”), which conferred a right not to have action short of dismissal taken against a person because of membership of an independent trade union. Section 54(3) of the 1975 Act provided that what at that time was the Industrial Tribunal had power to make an award of compensation, calculated in accordance with section 56. Section 56(1) provided that:

“The amount of the compensation awarded by a tribunal on a complaint under section 54 above shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the infringement of the complainant’s right under section 53 above by the employer’s action complained of and to any loss sustained by the complainant which is attributable to that action.”

Mr Barnett observes that that wording is materially the same as the wording of Regulation 30(4) of the Regulations with which this appeal is concerned, save that the word “infringement” is used in that legislation, whereas the word “default” is used in the Regulations. Mr Barnett submits that that difference in wording is immaterial.

In Brassington Bristow J said the following at paras. 31, 33 and 34:

“31.

In English law so far, with one exception, compensation means what it says. It is compensation of the injured party, not punishment for the person who commits the injury. Note once again that the s.70 quasi-fine is not called compensation. But injury is far wider than suffering in your pocket, and, apart from the amount to compensate for that, the compensation of such amount as the Tribunal considers just and equitable in all the circumstances is compensation for injury as a result of the employer’s action which you do not suffer in your pocket.

…

33.

In our judgment ss.54 and 56 empower the Industrial Tribunal to award compensation as it thinks just and equitable in the circumstances for such injury other than injury to your pocket caused by the employer to the employee by the action by which the s.53 right was infringed. Such action might be very easily shown to have caused injury to the individual other than injury to his pocket. The stress engendered by such a situation might easily cause injury to health. The Tribunal might think it to be just and equitable to compensate you if by reason of the action, your deep and sincere wish to join a union, with all the benefits of help and advice which that might entail, had been frustrated. If the employer’s action against you had resulted in the union failing in respect of a ‘recognition issue’ under s.11, that again might be an injury to you which the Tribunal might think warranted compensation under s.54(3). Parliament has not sought to categorise the injuries other than to the pocket, for which compensation may be awarded if the Tribunal thinks it just and equitable in the circumstances. But the employee who claims compensation must in our judgment first satisfy the Tribunal not only that his right has been infringed. If he shows that and no more then mandatory declaration is his remedy. He must go on to show injury resulting from the employer’s action which infringed his right, before the discretionary remedy of an award of compensation is in play.

34.

It may not be easy for the Tribunal to decide how much by way of compensation is just and equitable in the circumstances. Nor is it easy for the courts to put a fair price on physical injury or injury to reputation. Parliament has left it to the Tribunal, the ‘industrial jury’, and the Tribunal must do the best it can, remembering that too much and too little will be injustice and provoke appeal.”

Brassington was followed by the EAT in Cleveland Ambulance NHS Trust v Blane [1997] ICR 851, a decision of HHJ Peter Clark, sitting with lay members. That case concerned the right not to have action short of dismissal taken against a person for taking part in the activities of an independent trade union, a right by then (and still) contained in section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”). The remedial provision for breach of that right is contained in section 149(2) of the 1992 Act. Section 149(2) provides that:

“The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and to any loss sustained by the complainant which is attributable to the action which infringed his right.”

As the EAT observed in Blane, at p.856, the leading authority on the subject of compensation for unfair dismissal at that time was the decision of the National Industrial Relations Court in Norton Tool, in which it was held that a compensatory award for unfair dismissal could not include a sum in respect of injury to feelings. As Judge Clark said:

“That principle has never since been doubted.”

I will return to what the House of Lords said about Norton Tool in due course.

Also at p.856 Judge Clark referred to the “spoiled holiday cases” (see Jarvis v Swans Tours Ltd [1973] QB 233) and the case of the distressed litigant let down by her solicitors (see Heywood v Wellers [1976] QB 446). At p.857 Judge Clark noted that, when Parliament came to draft the Sex Discrimination Act 1975 and the Race Relations Act 1976, “it took care to make clear that compensation for unlawful discrimination could include an award for injury to feelings”: see sections 65(1)(b) and 66(4) of the 1975 Act; and sections 56(1)(b) and 57(4) of the 1976 Act.

At pp.857-858 Judge Clark considered in some detail the decision of the EAT in Brassington. He noted that the question of whether Brassington was correctly decided had arisen for consideration by the Court of Appeal in National Coal Board v Ridgway [1987] ICR 641. The decision in Ridgway in turn was subsequently overruled by the House of Lords in Associated British Ports v Palmer [1995] ICR 406, in so far as it was held by a majority that “action” in section 23(1) of the Employment Protection (Consolidation) Act 1978 – now section 146(1) of the 1992 Act – included an omission. However, consideration of Brassington arose in Ridgway in relation to a preliminary objection by the National Coal Board that the appeal by the applicants was academic and therefore should not be heard. It was in that context that counsel for the Board argued that Brassington had been wrongly decided. That submission was summarised by May LJ at p.648. May LJ was inclined to accept the submission. However, Nicholls and Bingham LJJ disagreed and accordingly the Court of Appeal proceeded to hear the substantive appeal on its merits. As Judge Clark observed at p.858 in Blane, both Nicholls and Bingham LJJ “deliberately expressed no view on the submission, Nicholls LJ pointing out that full argument was not addressed to the Court.” Against that background Judge Clark said in Blane at p.858:

“If follows that, so far as we are aware, this is the first time that the point has arisen directly for determination at the appellate level, following full argument by counsel on both sides. We say at once that we shall follow the approach of Bristow J in Brassington v Cauldon Wholesale Ltd. [1978] I.C.R. 405 in preference to the minority, obiter view expressed by May LJ without reasons and without the benefit of full argument in National Coal Board v Ridgway [1987] I.C.R. 641. Our reasons for doing so are as follows.

(1)

If the wording of section 149(2) of the Act of 1992 had followed precisely the wording of what is now section 123(1) of the Employment Rights Act 1996, subject to the different claims being mentioned, we should have had no hesitation in following the line of authority beginning, at common law, with Addis v Gramophone Co Ltd [1909] A.C. 488, and imported into the statutory law of unfair dismissal by Norton Tool Co Ltd v Tewson [1972] I.C.R. 501.

(2)

However, there is a significant difference. Section 149(2) adds the words “having regard to the infringement complained of and …” It seems to us that those words grant the industrial tribunal a power to award compensation over and above the pure pecuniary loss suffered by the applicant. Given the scope for awards to complainants who have suffered by way of sex or race discrimination to reflect injury to feelings, we see no reason in principle why the words of the section cannot extend to such award. Put another way, what do the words add to the normal formulation of available pecuniary loss claims for unfair dismissal, if not to include an award for non-pecuniary loss including injury to feelings?

(3)

It is not fatal to our construction that the Sex Discrimination Act 1975 and the Race Relations Act 1976 contain specific references to awards for injury to feelings, and section 149(2) of the Act of 1992 does not. Those provisions were inserted ‘for the avoidance of doubt,’ not to create an otherwise otiose head of claim.

(4)

We are unimpressed by the argument advanced by the employer in National Coal Board v Ridgway [1987] I.C.R. 641, and implicitly adopted by Ms Pitt before us. It is nothing to the point that an award for injury to feelings cannot be recovered in a wrongful dismissal or unfair dismissal claim. They are different claims, compensated in different ways. We do not accept that a complaint under section 146(1) of the Act of 1992 can simply be categorised as less serious and therefore cannot allow of a head of compensation not provided for in claims of unfair dismissal or wrongful dismissal. Apart from the different wording of the section, the intention behind it is clear; an employee who is unfairly dismissed will normally suffer pecuniary loss, and that, Parliament has decided, will adequately compensate him for the wrong. In a case of action short of dismissal it may very well be that he can point to no pecuniary loss; nevertheless, Parliament has decided that he should be able to recover financial compensation ‘having regard to the infringement complained of.’ That must, in our judgment, include injury to his feelings occasioned by the unlawful act.”

The third of the EAT decisions on which Mr Barnett relies is London Borough of Hackney v Adams [2003] IRLR 402, a decision of Elias J, sitting with lay members. That was a case concerning the amount of compensation which was appropriate where there had been action taken on the ground of trade union activity. The complainant was a shop steward. One of the grounds of appeal before the EAT was that the Employment Tribunal was alleged to have erred in apparently treating the range of awards for damages for injured feelings in this case as being in the same range as those that would be awarded in cases of sex and race discrimination: see para. 7 of the judgment. At para. 10 Elias J said:

“… There are no grounds for asserting that discrimination on trade union grounds will justify lower awards of compensation to other forms of discrimination, such as race or sex discrimination. In each case it is necessary to establish the loss by focussing on the particular injury suffered. If the injury in two cases is the same, it would not be just to award different levels of compensation simply because the source of the injury was different forms of discrimination. …”

At paras. 11-12 Elias J went on to say:

“11.

That is not to say, however, that it will in all cases be just as easy to establish injury to feelings in relation to one form of discrimination as another. We doubt whether that can be right. Sometimes such injury will be the almost inevitable concomitant of the discrimination having occurred. For example, it can readily be assumed where someone has suffered an act of race or sex discrimination that will by its very nature have caused injury to feelings: it is demeaning to the individual and offensive to his or her dignity to be so treated. A tribunal will readily infer some injury to feelings from the simple fact of the discrimination having occurred. Such injury may of course be compounded by the particular manner in which the discriminatory conduct itself is made manifest. For example, harassment over a lengthy period will plainly result in more considerable distress than a single act of discrimination and should be compensated for accordingly. There will, however, have to be evidence of the nature of the discriminatory conduct.

12.

By contrast, other forms of discrimination may leave the victim relatively, if not wholly, unscathed from any real distress. For example, it is unlawful to discriminate against someone on the grounds that he or she is a non-unionist. It seems to us that it is far from self-evident that, for example, someone refused employment on those grounds will necessarily suffer any injury to feelings at all. The status of not being a trade union member is not likely, at least in most cases, to be an essential part of an individual’s make-up, or to be a characteristic which is central to a person’s sense of self-respect and self-esteem. Making good the financial loss actually suffered may in such a case be adequate compensation. Even if there is an injury to feelings, the distress is likely to be less severe than with forms of discrimination which engage the core of a person’s being. Of course, that is not to say that there may not be particular cases where such injury cannot be established, such as a non-unionist who for that reason suffers harassment in a trade union shop. But it ought not readily to be assumed that injury to feelings inevitably flows from each and every unlawful act of discrimination. In each case it is a question of considering the facts carefully to determine whether the loss has been sustained. Some persons discriminated against on trade union grounds may feel deeply hurt by that affront, particularly where union membership is an important feature of their lives; other more robust characters may consider it a matter of little consequence and suffer little, if any, distress. Since the aim is to compensate and not to punish, the compensation to be awarded ought not to be the same in each case.”

In my view, the decision in Adams does not assist in resolving the issue of law which arises in the present context. This is because it was common ground in that case that there was jurisdiction to award compensation for injury to feelings; the only issue was how the quantum of such an award should be assessed. In particular what was in issue was whether it could be assumed that there must be such injury to feelings in a trade union detriment case, just as it could be assumed in a sex or race discrimination case. The EAT held that such an assumption cannot be made.

Finally, Mr Barnett relies on the recent decision of the EAT in South Yorkshire Fire & Rescue Service v Mansell & Others (UKEAT/0151/17) dated 30 January 2018 (Soole J), which was decided after the present case and which distinguished it. That case concerned the question whether the ET has jurisdiction to award compensation for injury to feelings under section 49 of the 1996 Act in respect of complaints of “working time detriment” under sections 45A and 48 of that Act. The ET had held at a preliminary hearing that it did have such jurisdiction. The employer appealed on the ground that this was not akin to the sorts of case in which compensation for injury to feelings has to date been available, for example trade union detriment cases. Soole J dismissed the employer’s appeal.

It should be noted that section 49(2) of the 1996 Act is worded in a similar way to the other legislation which has already been examined:

“The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to –

(a)

the infringement to which the complaint relates, and

(b)

any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.”

In my view, this decision takes matters no further for present purposes. First, Soole J was simply following the earlier decisions to which I have already made reference and applying them to the particular context before him. As he observed at para. 56 of his judgment:

“… The established categories (trade union rights, whistleblowing) are treated as akin to discrimination cases in a relatively loose sense, namely that the claimant has suffered some form of detriment on the grounds of his protected right or act. Whilst the right may require a particular status (e.g. trade union member; health and safety representative …), the example of whistleblowing demonstrates that this is not essential, save in the requirement to be a ‘worker’ (section 47B). What matters is the right, to which Part V gives further protection.”

Secondly, Soole J expressly considered and distinguished the decision of Slade J in the present case: see para. 54 of his judgment. He drew a distinction from claims for breach of contract or claims akin to breach of contract, such as the present case, and cases of statutory torts. He regarded the case before him as falling into the latter category. That decision provides no assistance as to the correctness or otherwise of the decision of Slade J in the present case.

On reflection, therefore, Mr Barnett’s submission rests principally on the two decisions of the EAT in Brassington and Blane. Those two cases were cited in the course of argument before the House of Lords in Dunnachie. However, they were not referred to in the opinion of Lord Steyn, which was the main opinion given. As I have already mentioned, the issue of law which fell for decision in Dunnachie was whether an award for injury to feelings can be made in the context of unfair dismissal. In particular the issue arose whether the decision in Norton Tool had been correctly decided in holding that there is no such power in the context of unfair dismissal. As Lord Steyn observed at para. 4, Norton Tool had generally been assumed to reflect the correct legal position until it was called into question by Lord Hoffmann in Johnson, at para. 55. It should be noted that, in Dunnachie, all the other members of the House of Lords (including Lord Hoffmann) agreed with the opinion of Lord Steyn.

On the facts of Dunnachie the Employment Tribunal had awarded compensation in the sum of £10, 000 for injury to feelings. The employer’s appeal was allowed by the EAT. The employee’s appeal was allowed by the Court of Appeal by a majority (Sedley LJ and Evans-Lombe J, with Brooke LJ dissenting). The employer then appealed to the House of Lords. During the course of argument as recorded at p.240, counsel for the employee made reference to the decision of the EAT in Blane. They submitted that, if the employer’s construction of section 123 of the 1996 Act were correct, this would create the anomaly that the employee who is victimised by actions short of dismissal can recover damages for injury to feelings whereas the employee who is dismissed on grounds related to trade union membership or activities will not be able to obtain compensation for non-economic loss. It is notable that even counsel for the employee acknowledged that the basis on which Blane was decided (that section 149(2) of the 1992 Act contained the words “having regard to the infringement complained of”) was “an unconvincing basis for such a significant distinction.” (p.240E). Counsel also made reference in that passage to the decision of the EAT in Brassington.

The House of Lords decided in Dunnachie that Norton Tool was correctly decided and that the Court of Appeal had been wrong. Lord Steyn said that the plain meaning of the word “loss” in section 123(1) of the 1996 Act excludes non-economic loss: see para. 22 of his opinion. Earlier, at para. 17, he said the following:

“It can readily be accepted that the word ‘loss’ in varying contexts may have wider and narrower meanings. But that proposition is of no legal interest. The question before the House is the meaning of the word ‘loss’ in section 116(1) of the 1971 Act. If properly construed it was restricted to economic loss, the re-enactment of the statutory formula in 1996 must bear the same meaning. It is not a case in which the ambulatory consequences of the always speaking canon of construction has any role to play. Nothing that happened in 1971 could justify giving to the statutory formula a meaning it did not originally bear.”

Further, at para. 16, he said:

“… Read in context the word ‘loss’ has a plain meaning which excludes non-economic loss. It does not cover injury to feelings. It is to be contrasted with section 66(4) of the Sex Discrimination Act 1975, section 57(4) of the Race Relations Act 1976 and section 8(4) of the Disability Discrimination Act 1995 which all expressly provide for compensation for injury to feelings.” (Emphasis in original)

From para. 23 of his opinion Lord Steyn turned to the different ground which had been the basis of the decision by Sedley LJ in the Court of Appeal and which counsel for the employee urged on the House of Lords. This was based on the formula “just and equitable in all the circumstances”, which appears in section 123(1) of the 1996 Act and also appears in Regulation 30 of the present regulations. However, Lord Steyn concluded that Sedley LJ had been wrong about this point. At para. 24 he noted that litigants in the employment tribunal are often unrepresented and so there is an understandable desire for informality of procedure, without the need for elaborate schedules of loss. He continued:

“… The phrase ‘just and equitable’ gives the Tribunal a degree of flexibility having regard to the informality of the procedures, and the fact that the maximum award is capped.”

At para. 26 he went on to state:

“In my view section 123(1) must be construed as a composite formula. The interpretation preferred by Sedley LJ splits up the formula in a way which, with great respect, is more than a little contrived. It unjustifiably relegates the criterion of loss to a subordinate role. Given the hypothesis that the legislature expressly provided for the recovery of economic loss, it fails to explain why the legislature did not also expressly provide for compensation for injury to feelings. It also fails to take account of the context. For example, on this expansive interpretation there would as already mentioned be nothing on the face of the statute to exclude the award (subject to the cap which is now standing at £55, 000) of aggravated or exemplary damages. This could not have been intended. The better view is that the provision was not intended, in the words of Brooke LJ [2004] ICR 481, 508, para 53, to provide for ‘palm tree’ justice.”

In my view, the time has come to stand back and review the line of authority in the EAT which forms the foundation of Mr Barnett’s argument in the present case. In my respectful view, that line of authority is arguably wrong and should certainly be confined to its particular context. In my view, the reasoning in it is difficult to reconcile with what was said by the House of Lords in Dunnachie.

First, the natural place where one would expect to see provision to be made for compensation for injury to feelings is in the limb of the relevant legislation that deals with the “loss” attributable to the unlawful act of an employer. After all, as I have mentioned earlier, injury to feelings is a type of loss; and an award of damages for it is compensatory in nature, not punitive.

Secondly, the limb in the relevant legislation that deals with the “infringement” by an employer – or, in the context of Regulation 30(4)(a), “default” – is not naturally language that is concerned with compensation at all. Rather it concerns the nature or extent of the employer’s unlawful action: for example, was it a one-off incident or was it a persistent practice?

Thirdly, the phrase “just and equitable” does not confer a general power on tribunals to award what they think ought to be awarded in a form of “palm tree justice.” As Lord Steyn made clear in Dunnachie, that phrase simply addresses the fact that, in the relatively informal setting of an employment tribunal, it may not be appropriate to expect an unrepresented litigant to produce a detailed schedule of loss of the type that might be expected in ordinary civil litigation. That phrase is not broad enough to confer jurisdiction to award compensation for injury to feelings, as the EAT appears to have thought in Brassington. If it were that broad, there would be jurisdiction to make such an award in unfair dismissal cases, which Dunnachie holds authoritatively that there is not.

Fourthly, the House of Lords in Dunnachie considered that some importance should be attached to the fact that, in the context of the discrimination legislation, Parliament had expressly conferred jurisdiction on tribunals to award compensation for injury to feelings, whereas in the context of unfair dismissal it had not. The same point can be made about the legislation in the present context and that considered in the EAT line of authority to which I have referred. I would observe that the point emphasised by Judge Clark in Blane, that the discrimination legislation at the time included those provisions expressly “for the avoidance of doubt” no longer holds true: the Equality Act does not contain that phrase.

Nevertheless, I would prefer to leave for decision in another case, in which the issue arises directly, whether cases such as Brassington and Blane were correctly decided in their own context. This is because (i) those cases have a longstanding pedigree, going back around 40 years; (ii) they were decided by judges with long experience of employment law; (iii) the House of Lords had the opportunity to say that the cases of Brassington and Blane were wrong since they were cited in Dunnachie but did not say anything about them; (iv) this Court did not have the benefit of full argument on the point, since Mr Pascall came to the hearing to distinguish the earlier EAT line of authority, not to bury it; and (v) they appear to relate to situations in which there may be no financial loss at all and so the purpose of Parliament in conferring the rights in question may be frustrated if compensation for injury to feelings were not available either. This is a point mentioned by Judge Clark in particular, in Blane in a passage which I have quoted at para. 47 above.

However, even if correctly decided, that line of authority is distinguishable from the present case because it concerns breaches of employment rights which are analogous to discrimination claims. In the present context, I agree with Slade J that the wrong complained of is akin to a breach of contract.

In my view, in the present type of complaint, the wrong committed by an employer is in substance the failure to give a paid break during the day. The net effect of that is that the worker is required to do work for a longer period of time than they are in substance being paid for. The natural remedy for that wrong is to make a payment of compensation for that time based on their rate of pay. That is what the ET decided to do in the present case, the parties having agreed the quantum.

Furthermore, I do not accept Mr Barnett’s submission that this is the sort of contractual claim which exceptionally can attract an award of damages for injury to feelings, for example the “spoiled holiday” cases. The rationale for that exception in breach of contract cases is that there are certain types of contract where their underlying purpose is to provide enjoyment and pleasure for a person and, if such a contract is breached, the purchaser will have been denied the very thing they contracted to buy, something for which compensation should be given. That is not the present type of case. In the present context, as I have indicated, the mischief is that an employee is in effect required to work for no pay for the period of time which she does not have a paid break.

Accordingly I would reject the Appellant’s first ground of appeal.

Mr Barnett submits that, even if otherwise domestic law would not allow for the availability of compensation for injury to feelings, the Regulations must be construed in a way which does have that result in order to give effect to EU law.

The following basic principles were common ground and need no citation of authority for present purposes. First, in general EU law leaves the question of the appropriate remedy to Member States. This is subject to two principles: the principle of equivalence, or non-discrimination as between EU rights and purely domestic law rights; and the principle of effectiveness, in other words that the Member State’s national procedures must provide an effective remedy for breach of the EU law right in question.

Mr Barnett did not focus on the principle of equivalence or non-discrimination. In my view, he was correct not to do so. There is plainly equivalence between domestic law rights, in particular the right not to be unfairly dismissed, in which the House of Lords has established that there is no ability to award compensation for injury to feelings (Dunnachie); and the EU law right in question here. There is also equivalence in the way that domestic law normally treats a claim for breach of contract (where no damages for injury to feelings are available) and the EU law right in this case. Accordingly Mr Barnett focused his submissions based on EU law on the principle of effectiveness.

In that context Mr Barnett relies in particular on recital (4) in the preamble to the Working Time Directive, which states:

“The improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.”

In my view, that recital takes the present issue no further. It simply underlines the point that one of the purposes of enacting the Directive was to improve workers’ health at work. That is clearly right. The ability to take a paid break during working time is conducive to that underlying social objective of the legislation. That does not, however, assist in interpreting the Directive in order to answer the question: are injury to feelings to be compensated where there is a breach of the right to a paid break?

Next, Mr Barnett relied on the decision of the CJEU in Case C-84/94 United Kingdom v EU Council [1996] 3 CMLR 671. In that case the government of the UK sought to annul the Directive on the ground that it was not properly within the competence of the EU institutions. The government based its argument on Article 118a of the then EC Treaty. That Article permitted the qualified majority voting procedure to be used in certain situations. The UK had not taken part in the vote. The CJEU held that the Directive was within the competence of the EU legislative organs. At para. 15 of its judgment the CJEU said that the concept of “health” in Article 118a should not be interpreted restrictively. On the contrary, it should be given a broad interpretation. It continued:

“… Moreover, such an interpretation of the words ‘safety’ and ‘health’ derives support in particular from the preamble to the Constitution of the World Heath Organisation to which all the Member States belong. Health is there defined as a state of complete physical, mental and social well-being that does not consist only in the absence of illness or infirmity.”

Again, in my view, that decision does not assist the Appellant in the present context. What the CJEU held in that case, although important, was simply that the Working Time Directive had been validly made by the EU legislative organs because that it fell within the qualified majority voting procedure. It could properly be regarded as a measure which was in part about “health”. However, that does not answer the question of what remedies may be required in order to give effect to the right to a paid break during the working day. That brings one back to the fundamental issue in the present case. That was neither addressed nor answered by the CJEU in UK v EU Council.

Finally, Mr Barnett submits that the issue of the EU law which he raises is not acte clair and therefore should be made the subject of a reference for a preliminary ruling from the CJEU. I disagree. In my view, the point of EU law in this case is clear and should be decided against the Appellant.

For the reasons I have given I would dismiss this appeal. I would also refuse the application made on behalf of the Appellant that the issue of EU law raised in this case should be referred to the CJEU for a preliminary ruling.

I agree.

I also agree.